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Koya Ankamma Vs. Konaganchi Kameswaramma - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported in(1935)68MLJ87
AppellantKoya Ankamma
RespondentKonaganchi Kameswaramma
Cases ReferredMahableshvar Krishnappa v. Ramachandra Mangesh I.L.R.
Excerpt:
- - with great respect to the learned judges, this argument runs counter to a number of decisions in this court and ignores certain well-established rules underlying the limitation act. and (2) by reason of the well estalished principle, that whenever there is a specific article applicable to a suit, a general article like article 144 will be excluded......that all remedies arising out of voidable transactions should be sought within the shorter period of limitation. a fairly full discussion of this aspect of the matter will be found in the judgment in raja ramaswami v. govinda ammal (1928) 56 m.l.j. 340 etc., see also munagarra satya lakshmi narayana v. munagarra jagannadham (1917) 34 m.l.j. 229.5. the third point that the suit is not barred as regards the deceased brother's share must beheld to be precluded by the authority of the decision in doraisami serumadan v, nondisami saluvan i.l.r.(1912) 38 mad. 118 : 25 m.l.j. 405 which has been followed in surayya v. subbamma (1927) 53 m.l.j. 667 see also mahableshvar krishnappa v. ramachandra mangesh i.l.r.(1913) 38 bom. 94.6. the second appeal therefore fails and is dismissed with.....
Judgment:

Varadachariar, J.

1. This second appeal raises a point of limitation. There were two undivided cousins and at a time when both of them were minors, their mothers acting as guardians alienated certain properties belonging to the two minors. One of the minors died later on and the present suit is brought by the surviving minor to recover the property from the alienee on the ground that the alienation was beyond the power of the guardians to make. The suit has been instituted within twelve years of the alienation but more than three years after the plaintiff attained majority. The Courts below have dismissed the suit as barred by Article 44 of the Limitation Act, so far as these items are concerned.

2. On behalf of the appellant, Mr. Lakshmiah has raised three points:(1) that Article 44 has no application to the case at all, because the two minor cousins being members of a joint Hindu family it will not be correct to speak of their mothers as guardians in any legal sense, as contemplated by Article 44; (2) that as the suit has been filed within twelve years of the alienation, the plaintiff is entitled to the benefit of Article 144 of the Limitation Act even though more than three years may have elapsed after he has attained majority; (3) that the suit cannot be governed by Article 44 of the Limitation Act so far as the deceased cousin's share is concerned.

3. On the first point, he relies upon the observations in Appanna Prasada Panda v. Appanna Mahapatro (1917) 40 I.C. 145, Thirupathi Raju v. Venkata Raju (1916) 40 I.C. 695 and Kathaperumal Thevan v. Ramalinga Thevan (1914) 27 I.C. 695, where referring to the judgment of the Privy Council in Gharib-ullah v. Khalak Singh I.L.R.(1903) 25 All. 407 it has been pointed out that a minor's interest in an undivided Hindu family is not such an interest or property that a guardian can be appointed or predicated in respect of it. I must however observe that in both these cases there were other adult co-parceners and the legal guardianship of the minor co-parcener was therefore held to vest in the adult co-parcener. In the present case, there were no adult co-parceners at all. The application of the dictum in Gharib-ullah v. Khalak Singh I.L.R.(1903) 25 All. 407 to such cases has been discussed by Jenkins, C.J., in Bindaji v. Mathurabai I.L.R.(1905) 30 Bom. 152 though it was not in connection with any question of limitation : see also Ramachandra v. Krishnarao I.L.R.(1908) 32 Bom. 259. There are at least two cases of this Court where during the minority of the adult members of a co-parcenary, alienations have been made by persons purporting to act as guardians and the Court has applied Article 44 of the Limitation Act to suits to set aside such alienations: See Doraisami Serumadan v. Nondisami Saluvan I.L.R.(1912) 38 Mad. 118 : 25 M.L.J. 405 and Surayya v. Subbamma (1927) 53 M.L.J. 667. I therefore overrule the first contention.

4. The second contention is sought to be supported by the observations of Abdur Rahim and Sadasiva Aiyar, JJ., in Doraisami Serumadan v. Nondisami Saluvan I.L.R.(1912) 38 Mad. 118 : 25 M.L.J. 405 and of Venkatasubba Rao, J., in Ramiah v. Brahmiah : (1930)59MLJ196 . These observations suggest that Article 44 is merely an illustration of the combined operation of Article 144 and Sections 6 and 7 of the Limitation Act. They assume that even if Article 44 should be omitted the position would be the same by the combined operation of Article 144 and Section 6 and in this view they would control Art 44 by the principle recognised in Section 6, so that a minor may avail himself of whichever will give him a longer period. With great respect to the learned Judges, this argument runs counter to a number of decisions in this Court and ignores certain well-established rules underlying the Limitation Act. It has generally been recognised that the limitation Act draws a distinction between voidable transactions and void transactions and while a longer period is allowed for remedies arising out of void transactions a shorter period has been prescribed for all actions that seek to avoid voidable transactions. It has also been laid down that in the application of this rule, it makes no difference that there is also a prayer for possession included in the plaint. If this is the true principle underlying the enactment of Article 44, it will be scarcely right to regard it as merely an illustration of the combined operation of Article 144 and Section 6. I may also point out that Article 144 cannot be applicable to such cases at all, for at least two reasons: (1) by reason of the language of the third column, for in the case of guardian's alienations it cannot be predicated that the alienee's possession is adverse to the minor; and (2) by reason of the well estalished principle, that whenever there is a specific article applicable to a suit, a general article like Article 144 will be excluded. There are several decisions in this Court which have held the action barred under Article 44, though the suit itself had in fact been filed within twelve years of the alienation. See for instance Arumugham Pillai v. Panayadian Ambalam (1920) 40 M.L.J. 475, Madhugula Latchiah v. Pally Mukkalinga I.L.R.(1907) 30 Mad. 393 : 17 M.L.J. 220 and Sivavadivelu v. Ponnammal : (1912)22MLJ404 . Though this particular form of the argument, viz., that a minor is entitled to the benefit of a longer period, on the analogy of Section 6, has not in terms been stated in these cases, they have generally discussed the question of the difference between voidable and void transactions and indicated that Article 44 is the result of the policy of insisting that all remedies arising out of voidable transactions should be sought within the shorter period of limitation. A fairly full discussion of this aspect of the matter will be found in the judgment in Raja Ramaswami v. Govinda Ammal (1928) 56 M.L.J. 340 etc., see also Munagarra Satya Lakshmi Narayana v. Munagarra Jagannadham (1917) 34 M.L.J. 229.

5. The third point that the suit is not barred as regards the deceased brother's share must beheld to be precluded by the authority of the decision in Doraisami Serumadan v, Nondisami Saluvan I.L.R.(1912) 38 Mad. 118 : 25 M.L.J. 405 which has been followed in Surayya v. Subbamma (1927) 53 M.L.J. 667 see also Mahableshvar Krishnappa v. Ramachandra Mangesh I.L.R.(1913) 38 Bom. 94.

6. The second appeal therefore fails and is dismissed with costs.


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